Co. Read, 6. Co. Read. 3. Sur concessit. 2 Comm. 353. Seymour v. and his heirs, shall, after the decease of the said G., entirely remain to the said B. and his heirs for ever." 19. This fine is executory, and passes an estate in fee simple without the word heirs. It seems to have been the most ancient species of fine, for the demandant was obliged to follow the rules of law, and to sue out a writ of possession: but when it became usual to procure a feoffment of the lands first, a writ of possession was unnecessary; which probably gave rise to fines sur cognizance de droit come ceo, &c. 20. If there be tenant for life, remainder for life, and the first tenant for life levies a fine to the person in remainder, sur cognizance de droit tantum, it will operate as a surrender of his estate for life; because by this fine the tenant for life acknowledges all the right which he had in the lands to belong to the person in remainder. 21. The third sort of fine is called a fine sur concessit; where the cognizor, in order to make an end of all disputes, though he acknowledges no precedent right or gift, grants to the cognizor an estate de novo, by way of supposed composition; which may be either an estate in fee, in tail, or for life, or even for years. 22. The form of this fine is-“ And the agreement is such, to wit, that the aforesaid A. hath granted to the aforesaid B. the aforesaid tenements, &c., to hold for 61 years." It is executory. 23. A fine sur concessit will not be allowed to be levied for the purpose of passing such estate as the party may have, by the description of all and whatsoever he hath in the tenements. 24. A man and his wife, being seised of different 2 Taunt. 198. estates in different hereditaments, and intending to Barker, pass them all, acknowledged the concord of a fine The Court refused to permit the fine to pass. 25. The fourth sort of fine is called a fine sur done, Sur Done, Grant, and grant, and render; which is a double fine, compre- Reader. hending the fine sur cognizance de droit come ceo, and the fine sur concessit. It is used in order to create particular limitations of estates; whereas the fine sur cognizance de droit come ceo, &c. conveys nothing but an absolute estate, either of inheritance, or at least of freehold for in this fine the cognizee, after the right is acknowledged in him, renders or grants back to the cognizor some other estate in the lands. 26. The form of this fine is-" And the agree ment is such, to wit, that the aforesaid A. hath acknowledged the aforesaid tenements to be the right of him the said B., as those which the said B. hath of the gift of the aforesaid A. And those he hath remised and quit claimed from himself the said A. and his heirs for ever, (warranty from the cognizor); and for this acknowledgement, remise, quit claim, warranty, fine, and agreement, the said B. hath granted to the said A. the aforesaid tenements, &c. And this he hath rendered to him in the same court, to hold the said tenements to the said A. and the heirs of his body." Co. Read.11. 27. In a fine of this sort, the render must be made 2 Roll.Ab.15. of the lands demanded in the original writ, or of something issuing out of those lands. Thus, if the cognizance be made of the manor of Dale, the cognizee cannot make a render of the manor of Sale; or if the cognizance be made of the third part of a manor, the render cannot be made of the whole manor; because the Court can only determine the right of that about which the parties contended, and which was demanded in the original writ. But if the cognizor acknowledges all his right in the land to be in the cognizee, and the cognizee in return grants and renders to the cognizor a particular estate in the land, or a rent, or common, out of it, the render is good; because the determination entirely refers to the things in dispute; one party taking the ultimate property in the land, and the other a particular estate in it: all which is comprehended in the original writ. 28. It follows, from the same principle, that the lands must be rendered, in the first instance, to some person named in the original writ. But an estate may be rendered, by way of remainder, to a person not named in the original writ, as well as in any other kind of concord. 29. A fine sur done, grant, and render, is executed as to the first part, and executory as to the second; for if the first part was not executed, it would be void; as the cognizee can have nothing to render to the cognizor, till he is in possession. 30. In a fine of this kind the cognizee has only a seisin of an instant of that which he renders; which Tit. 6. c. 2. will not entitle his wife to dower. But still it is settled, that it operates as a feoffment and re-enfeoffinfra, c. 12. ment, and gives a new estate. 31. This species of fine being generally used to Touch. 18. create particular limitations of estates, is construed rather as a private deed or conveyance, than as a judgement in an adversary suit; and therefore it need not have such a precise form as other fines. 32. Husband and wife levied a fine to A. and B. Tey's Case, and the heirs of A. of the manor of Layer de la Hay, 5 Rep. 38. Layer Britton, and several other manors, and of a great number of acres of land, meadow, pasture, &c. in those manors; in which several grants and renders were made. In the third render the manors of Layer de la Hay, Layer Britton, et tenementa prædicta in Layer de la Hay and Layer Britton, were granted and rendered to the husband and wife, and to the heirs of the husband; and by the fourth render, 115 acres of land in Layer Britton were granted and rendered to the wife in tail. After the death of the husband, his brother and heir brought a writ of error, and assigned for error the repugnancy between the third and fourth render; for, by the third render, all the lands in Layer Britton were granted to the husband and wife, and to the heirs of the husband; and by the fourth render, part of the same tenements were granted to the wife in tail: so that the same lands were granted to two different persons, which was repugnant and erroneous. And it was observed, that a fine was of the same nature with a judgement, and that Bracton says Oportet ut res certa deducatur in judicium. The Court resolved, that the fourth render, as to that which was contained in the third render, should be of the same condition and quality in construction, as a charter or other conveyance between party and party, and need not have such a precise form as a writ of judgement; and therefore that the fourth 1 Rep. 156 a. Jennings v. render was good, and should invalidate the third render as to the 115 acres. 33. If lands be rendered by fine to a person and his heirs, the lands are thereby immediately bound. And though the person to whom the render is made die before execution, yet his heir will have the lands; for the fine having been levied in the lifetime of the parties, the lands are so bound by it, that it cannot be altered. And a declaration of the uses of a fine of this kind, which is contrary to the grant and render, is void. 1 |